Gurpal Singh Brar v. Income Tax Officer, Ward-6(4), Mohali

ITA No. 123 of 2017 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH ITA No. 123 of 2017 (O&M) Date of Decision: 9.2.2017 Gurpal Singh Brar Versus ....Appellant Income Tax Officer, Ward-6(4), Mohali ...Respondent. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL.HON'BLE MR. JUSTICE RAMENDRA JAIN. PRESENT: Mr. S.K. Mukhi, Advocate and Mr. Rajiv Sharma, Advocate for the appellant. AJAY KUMAR MITTAL, J. 1.This appeal has been filed by the assessee under Section 260Aof the Income Tax Act, 1961 (in short “the Act”) against the order dated25.11.2011 (Annexure A-3) passed by the Income Tax Appellate Tribunal,Chandigarh Bench 'B', Chandigarh (hereinafter referred to as “theTribunal”) in ITA No. 1352(CHD)/2010 and the consequential order dated30.10.2012 (Annexure A-3) in MA 1/CHD/2012, for the assessment year2006-07, claiming the substantial questions of law as mentioned in para 14of the appeal. 2.The facts necessary for adjudication of the present appeal asnarrated therein may be noticed. The appellant filed his return of income on28.7.2006 declaring the income at ` 1,77,770/-. His case was taken up forscrutiny and notice under Section 143(2) of the Act was issued on 28.7.2007. The appellant filed reply to the said notice. The AssessingOfficer vide assessment order dated 30.12.2008 (Annexure A-1) framed theassessment under Section 143(3) of the Act at ` 61,29,770/-. Feelingaggrieved, the assessee filed an appeal before the Commissioner of IncomeTax (Appeals) [for brevity “the CIT(A)”] on 7.1.2009. The CIT(A) videorder dated 15.7.2010 (Annexure A-2) dismissed the appeal. Still notsatisfied, the assessee filed an appeal before the Tribunal. The said appealcame up for hearing on 3.10.2011 and on the request of the parties, thematter was adjourned to 4.10.2011. The appellant engaged M/s Ved Jainand Associates, Chartered Accountants at New Delhi to represent him in theappeal before the Tribunal on 4.10.2011 who moved an application foradjournment before the Tribunal. However, the Tribunal vide order dated4.10.2011 rejected the said application. Finally, the Tribunal vide orderdated 25.11.2011 (Annexure A-3) partly allowed the appeal of the assesseeand remanded the matter to the Assessing Officer to re-adjudicate his claimregarding deposit of ` 5 lakhs. Thereafter, the appellant moved anapplication bearing MA No. 1/CHD/2012 for recalling the order dated25.11.2011. However, the Tribunal vide order dated 30.10.2012 dismissedthe said application. Hence, the present appeal. As the appeal is barred bylimitation, CM No.2980-CII of 2017 under Section 5 of the Limitation Act,1963 (in short, the “1963 Act”) has been filed for condonation of 326 days'delay in filing the appeal whereas CM No. 2981-CII of 2017 has been filedfor condonation of 1334 days' delay in refiling the appeal. 3.We have heard learned counsel for the appellant. 4.The preliminary question that arises for consideration in thisappeal is whether there is sufficient cause for condonation of delay of 326 ITA No. 123 of 2017 days in filing and 1334 days in refiling the appeal. 5.Examining the legal position relating to condonation of delayunder Section 5 of the 1963 Act, it may be observed that the Supreme Courtin Oriental Aroma Chemical Industries Ltd. v. Gujarat IndustrialDevelopment Corporation and another, (2010) 5 SCC 459 laying downthe broad principles for adjudicating the issue of condonation of delay, inparas 14 & 15 observed as under:- 3.We have heard learned counsel for the appellant. 4.The preliminary question that arises for consideration in thisappeal is whether there is sufficient cause for condonation of delay of 326 ITA No. 123 of 2017 days in filing and 1334 days in refiling the appeal. 5.Examining the legal position relating to condonation of delayunder Section 5 of the 1963 Act, it may be observed that the Supreme Courtin Oriental Aroma Chemical Industries Ltd. v. Gujarat IndustrialDevelopment Corporation and another, (2010) 5 SCC 459 laying downthe broad principles for adjudicating the issue of condonation of delay, inparas 14 & 15 observed as under:- “14.We have considered the respective submissions.The law of limitation is founded on public policy. Thelegislature does not prescribe limitation with the objectof destroying the rights of the parties but to ensure thatthey do not resort to dilatory tactics and seek remedywithout delay. The idea is that every legal remedy mustbe kept alive for a period fixed by the legislature. To putit differently, the law of limitation prescribes a periodwithin which legal remedy can be availed for redress ofthe legal injury. At the same time, the courts arebestowed with the power to condone the delay, ifsufficient cause is shown for not availing the remedywithin the stipulated time. 15.The expression “sufficient cause” employed inSection 5 of the Indian Limitation Act, 1963 and similarother statutes is elastic enough to enable the courts toapply the law in a meaningful manner which sub servesthe ends of justice. Although, no hard and fast rule canbe laid down in dealing with the applications for -4- condonation of delay, this Court has justifiablyadvocated adoption of a liberal approach in condoningthe delay of short duration and a stricter approach wherethe delay is inordinate-Collector (L.A.) v. Katiji N.Balakrishnan v. M. Krishnamurthy and Vedabai v.Shantaram Baburao Patil.” 6.It was further noticed by the Apex Court in R.B. Ramlingam v. R.B. Bhavaneshwari 2009(1) RCR (Civil) 892 as under:- “.....It is not necessary at this stage to discuss each andevery judgment cited before us for the simple reason thatSection 5 of the Limitation Act, 1963 does not lay downany standard or objective test. The test of “sufficientcause” is purely an individualistic test. It is not anobjective test. Therefore, no two cases can be treatedalike. The statute of limitation has left the concept of“sufficient cause” delightfully undefined, thereby leavingto the Court a well-intentioned discretion to decide theindividual cases whether circumstances exist establishingsufficient cause. There are no categories of sufficientcause. The categories of sufficient cause are neverexhausted. Each case spells out a unique experience tobe dealt with by the Court as such.” It was also recorded that:- “For the aforestated reasons, we hold that in each andevery case the Court has to examine whether delay infiling the special leave petition stands properly explained. This is the basic test which needs to beapplied. The true guide is whether the petitioner hasacted with reasonable diligence in the prosecution of hisappeal/petition....” It was also recorded that:- “For the aforestated reasons, we hold that in each andevery case the Court has to examine whether delay infiling the special leave petition stands properly explained. This is the basic test which needs to beapplied. The true guide is whether the petitioner hasacted with reasonable diligence in the prosecution of hisappeal/petition....” 7.From the above, it emerges that the law of limitation has beenenacted which is based on public policy so as to prescribe time limit foravailing legal remedy for redressal of the injury caused. The purposebehind enacting law of limitation is not to destroy the rights of the partiesbut to see that the uncertainty should not prevail for unlimited period.Under Section 5 of the 1963 Act, the courts are empowered to condone thedelay where a party approaching the court belatedly shows sufficient causefor not availing the remedy within the prescribed period. The meaning to beassigned to the expression “sufficient cause” occurring in Section 5 of the1963 Act should be such so as to do substantial justice between the parties.The existence of sufficient cause depends upon facts of each case and nohard and fast rule can be applied in deciding such cases. 8.The Apex Court in Oriental Aroma Chemical Industries Ltd. and R.B. Ramlingam's cases (supra) noticed that the courts should adoptliberal approach where delay is of short period whereas the proof requiredshould be strict where the delay is inordinate. Further, it was also observedthat judgments dealing with the condonation of delay may not lay down anystandard or objective test but is purely an individualistic test. The court isrequired to examine while adjudicating the matter relating to condonationof delay on exercising judicial discretion on individual facts involvedtherein. There does not exist any exhaustive list constituting sufficientcause. The applicant/petitioner is required to establish that inspite of acting ITA No. 123 of 2017-6- with due care and caution, the delay had occurred due to circumstancesbeyond his control and was inevitable. 9.According to the learned counsel for the appellant, after thedisposal of the appeal on 25.11.2011 by the Tribunal, the appellant movedan application for recalling the order dated 25.11.2011 before the Tribunal.The said application was dismissed by the Tribunal. Thereafter, theappellant filed the present appeal which was belated by 326 days. Further,there was a delay of 1334 days in reifling the present appeal. It was urgedthat the delay, if any, has occurred in the aforesaid circumstances in filing aswell as in refiling the appeal. Learned counsel further argued that the delaywas unintentional and due to the circumstances beyond the control of theappellant. 10.Adverting to the factual matrix in this case seeking condonationof inordinate delay of 326 days in filing and 1334 days in refiling theappeal, we do not find any merit in the same. The question regardingwhether there is sufficient cause or not depends upon each case andprimarily is a question of fact to be considered taking totality of eventswhich had taken place in a particular case. In the present case afterappreciating the matter it cannot be said that there was sufficient cause forcondonation of delay. The Tribunal had decided the matter on 25.11.2011.However, the appeal before this Court was required to be filed within thestipulated period of limitation. However, the appellant instead of filing theappeal within time, filed an application bearing MA No.1/CHD/2012 whichwas dismissed by the Tribunal vide order dated 30.10.2012. But theappellant filed the appeal on 27.2.2013 before this Court after the delay of326 days and lastly refiled on 7/8.2.2017 after a colossal delay of 1334 days. ITA No. 123 of 2017 ITA No. 123 of 2017 The plea of the appellant would not satisfy the test of sufficient cause. Theexplanation of the appellant praying for condonation of delay in filing andrefiling the appeal, as noticed hereinabove, is bereft of sufficient cause fordelay caused in filing the appeal. Further, a stale matter cannot be revivedby approaching the Court belatedly. 11.In view of the above, finding no merit in the applications forcondonation of 326 days' delay in filing and 1334 days' in refiling theappeal, the same are hereby dismissed and consequently, the appeal isdismissed as time barred.